Thursday, February 20, 2014
Alexander Tsoutsanis, University of Amsterdam, Institute for Information; DLA Piper, is publishing Why Copyright and Linking Can Tango in the Journal of Intellectual Property Law (2014). Here is the abstract.
This article discusses the legal status of links, in connection with the pending cases before the Court of Justice of the European Union in Svensson, C More and BestWater. Hyperlinks, deep links, framed links and embedded links are discussed.
It focuses on the Opinion of the European Copyright Society on the Svensson case. The ALAI Opinion is also briefly discussed.
This article proposes nine angles as part of the multi-factor test to determine whether linking is actionable under European copyright law: four policy arguments (harmonization, high level protection, technology neutral, authorization) and five factors (‘making available’, ‘to the public’, ‘new public’, ‘intervention’ and ‘profit’).
The author concludes that properly balancing those nine factors can ensure that copyright and linking can tango, in step with existing policy goals and case-law, allowing linking in some situations, while requiring separate authorization in others.
Download the article from SSRN at the link.